Decisions & Commentaries
The following are a few of the legal decisions that our attorneys have been involved in:
HOW SHALL WE DUEL?
SUPREME COURT ENFORCES AGREEMENT TO ARBITRATE, GRANTS STAY OF ACTION – CONSIDERS SEPERABILITY OF ARBITRATION CLAUSE
CONFIDENTLY SPEAKING… OR NOT SPEAKING
BELIZE SUPREME COURT REINFORCES THE IMPORTANCE OF CONFIDENTIALITY IN MEDIATION – ATTORNEYS & LITIGANTS FOREWARNED
In a recent decision, the Supreme Court of Belize has signaled its commitment to preserving confidentiality of the Court connected Mediation process. The decision also confirms that the duty of confidentiality extends not only to litigants but also to their Attorneys. In this decision the Attorney was fined for breaching the rules of confidentiality, learned Supreme Court Justice Courtenay Abel warned that future infractions would attract more significant penalties and encouraged Attorneys to heed the provision of the Civil Procedure Rules which impose a duty of confidentiality. The decision has served to fortify the veil of confidentiality which has long been a cornerstone of the mediation process and gives teeth to the provisions of the Civil Procedure Rules aimed at encouraging litigants to meaningfully engage in the alternative avenues for resolution of litigation such as mediation.
IN MY EXPERT OPINION
HOW THE HEARSAY RULE APPLIES TO EXPERT EVIDENCE – MYERS v DPP REVISITED
Against the backdrop of a seemingly straightforward claim for the costs of goods sold and delivered (fuel), the Supreme Court and then the Court of Appeal addressed the vexed issue of the admissibility of expert evidence. The expert evidence was crucial to the proof of the counterclaim wherein the Defendant alleged that the fuel was not of the agreed quality or specifications, further that the inferior fuel caused damage to its equipment. Learned Justice of Appeal Dennis Morrison surveyed and analyzed the authorities and found essentially “two – complementary – propositions on the issue of the admissibility of expert opinion evidence based on hearsay thus: The first is that, where the opinion of an expert is based on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion, that fact must be proved independently by admissible evidence, either given by the expert himself if it is within his own knowledge, or by some other witness. But secondly, once the primary facts on which the expert’s opinion is based have been proved by such evidence, the expert may draw on the general body of knowledge in the particular area of expertise comprised in the work of others.”
No firsthand evidence as to the test results on which the experts’ evidence were based was given at the trial. In light of this the expert evidence was ruled inadmissible and the counterclaim which required cogent technical evidence accordingly failed. The decision also corrected the error of the trial Judge who had ruled that the Claimant was not entitled to recover the sums claimed for goods which were sold and delivered to the Defendant because of the Claimant’s failure to disprove the Defendant’s allegation of inferior quality fuel. Judgment was awarded to the Claimant/ Appellant. READ MORE
BEWARE OF FALLING EMPLOYEES!
SLIP & FALL INCIDENTS AT WORK- FULFILLING THE EMPLOYER’S DUTY TO PROVIDE A SAFE PLACE OF WORK
Slip and fall accidents on the job usually present significant difficulty for employers. In a recent decision of the Supreme Court of Belize, the duty of the employer to provide a safe place of work was placed squarely under the legal microscope. The employer was able to successfully show that it not only provided a safe workplace but also a safe system, safe equipment and adequate training to its employee. Is your work environment safe? READ MORE
NO DOUBLE DIPPING
SUPREME COURT GRANTS SUMMARY JUDGMENT IN CLAIM FOR WRONGFUL DISMISSAL AND UNPAID SEVERANCE INVOLVING A CONTRIBUTORY PENSION SCHEME
An employee sued her former employer for wrongful dismissal and claimed inter alia that the employer failed to pay the statutorily mandated severance payment. There was a pension plan in place which expressly provided that the employer’s contribution includes any severance payment which is due to the employee.
The Belize Supreme Court considered, inter alia,
- Where a pension plan is in place pursuant to a collective bargaining agreement, whether the liability of an employer to pay severance pay arises from section 183 of the Labour Act or the Pension Plan.
- Whether the provisions of the Pension Plan oust sections 183 and 190 of the Labour Act, regarding an employee’s right to severance pay.
- Whether, the Claimant is entitled to a further sum of $12,590.63 as severance payment.
Having considered the facts, the pension deed and rules and the applicable statutory provisions the Court formed the view that the employee’s claim was without merit and unlikely to succeed. The Court found that the Pension Plan made express provision for the payment of severance pay and did not exclude or oust the mandatory provisions of the Labour Act (section 183(2). It was further found that section 194 of the Labour Act which provides for contributory retirement schemes empowered and enabled the employer to have its own Pension Plan. Further, section 194(3) provides that an employer’s liability to pay severance pay arises as set out in section 183 or in any collective agreement. The learned Justice Hafiz Bertram (as she then was) therefore found that the pension plan did not oust sections 183 and 190 of the Act regarding a party’s right to severance pay but conversely and quite appropriately made provisions for severance payment. Accordingly, the Claimant had already received her severance payment and summary judgment was granted pursuant to Rule 15.2 of the Supreme Court (Civil Procedure) Rules, 2005.
AFTER THE STORM
COURT OF APPEAL REJECTS INSURED’S CLAIM TO INDEMNITY FOR EFFECTS OF CYCLONE WHERE CLAIMANT WAS UNINSURED AT THE TIME CYCLONE OCCURRED
The Court of Appeal of Belize’s unanimous decision has served to restore calm to insurers by reinforcing two fundamental insurance requirements, i.e. there must be an element of uncertainty and that, barring an express provision for retro-activity, a risk must occur during the period of cover. In the case of Future Visions v Insurance Corporation of Belize Ltd the insured sued the insurer to recover the sum insured as a result of damage which it alleged it suffered as a result of flooding which rendered its property a total loss. The damage was alleged to have been cause by flooding which resulted from a tropical depression which ended on October 16, 2008. The policy of insurance was taken out several days after the depression ended. The insured alleged that the depression was the proximate cause of the flooding which it experienced while it was covered by the insurance policy and should be entitled to indemnity as the loss was suffered during the policy period.
The Court of Appeal decided that the determination as to proximate cause did not arise based on the clear finding that at the time the depression occurred, the property was not insured. It would therefore not be entitled to indemnity unless it point to some cause which occurred during the time of cover. The Court endorsed and applied KELLY v. NORWICH UNION FIRE INSURANCE SOCIETY LTD 1989 2 All ER 888, which remains a seminal decision on the pertinent legal issues that arose in this case. This decision underscores that insurance is a matter of foresight and planning and not a ‘morning after pill’.
FORGET PRE NUPTIAL AGREEMENTS- HAVE YOU CONSIDERED YOUR WILL, POST NUPTIALS?
COURT OF APPEAL RULES THAT MARRIAGE TO ‘COMMON LAW WIFE’ REVOKES WILL
The Court of Appeal of Belize had occasion to interpret the provisions of section 16 of the Wills Act, in order to determine whether the testator’s expression ‘my common law wife’ was sufficient to save the will from automatic revocation. Section 16 provides that a will is automatically revoked by the subsequent marriage of a testator unless that will is expressed to be in contemplation of that marriage. The evidence was that the testator Santiago had all intentions to marry Carlota whenever it became possible, at the time of writing the will in 1986 it did not appear possible based on the circumstances. In 1986 the law also had not changed to the present day provisions regarding common law unions and it was widely accepted that a common law wife referred to an unmarried woman in a long term relationship. By a fortuitous turn of events Santiago and Carlota were able to marry and did marry in 1993. Santiago did not prepare a new will. The Court was constrained to find on the plain meaning of the statute that the 1986 will did not contain on its face any words which expressed that the will was being made in contemplation of the 1993 marriage. It is therefore a requirement of the proviso not only that a will should be made in contemplation of marriage, it must be so expressed in the will that the will was being made by the testator in contemplation of the actual marriage in question.
The will was accordingly revoked by the subsequent marriage of Santiago to Carlota so that Santiago died intestate. The decision underscores the importance of giving serious post nuptial consideration to your will. READ MORE